House of Lords Delegated Powers and Regulatory Reform Committee
Deregulation Bill
Supplementary Memorandum from the Cabinet Office, the Health and Safety Executive, the
Department of Communities and Local Government, and the Ministry of Justice.
Introduction
1. This supplementary memorandum was prepared for the Delegated Powers and Regulatory Reform
Committee (“the Committee”) to assist the Committee with its scrutiny of the Deregulation Bill and
supplements the memoranda previously submitted to the Committee on:
a. 1st July 2014,
b. 27th October 2014,
c. 31st October 2014,
d. 11th November 2014,
e. 27th January 2015, and
f. 3rd February 2015.
2. This memorandum deals with amendments that are proposed for Third Reading in the House of
Lords. It covers both new delegated powers that have arisen by way of proposed amendment, as well
as proposed changes to delegated powers that were covered in previous memoranda in their original
form.
3. The material for this Memorandum was co-ordinated by the Cabinet Office but each section was
prepared by the relevant lead department listed below:
a. The amendment to the general duty of self-employed persons as regards Health and Safety at
Work – the Health and Safety Executive.
b. The collection of “Short Term Use Amendments” – the Department of Communities and
Local Government.
c. The collection of “Legal Services Amendments” – the Ministry of Justice.
Provisions that confer delegated powers
4. The amended provisions or new provisions proposed to be inserted into the Bill which confer or
make changes to the delegated powers are identified below. In relation to new powers conferred the
purpose of the delegated powers taken, and an explanation as to why the matter is to be left to
delegated legislation and why the Department has chosen a particular procedure are then set out in
relation to each relevant clause.
a. The amendment to clause 1 in relation to the general duty of self-employed persons as regards
Health and Safety at Work.
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b. The “Short Term Use Amendments” which insert a new clause after clause 43 and amend
clause 44.
c. The “Legal Services Amendments” which consist of

First new clause after clause 84 - CLC practitioner services bodies;

Second new clause after clause 84 - Licensed CLC practitioners;

Third new clause after clause 84 - CLC practitioner services: consequential
amendments;

Fourth new clause after clause 84 - The Council for Licensed Conveyancers: other
amendments;

Amendments to clause 110 concerning commencement of the Legal Services
Amendments covered by this supplementary memorandum;

First new Schedule after Schedule 18 - CLC practitioner services: consequential
amendments;

Second new Schedule after Schedule 18 - the Council for Licensed Conveyancers:
other amendments
Territorial Coverage
5. Any amendment of existing legislation has the same extent as the original legislation except where
specified by clause 109(2) and (3).
a. The amendment to the general health and safety at work duty of self-employed persons
6. This section of the memorandum covers proposed new changes to be made to the delegated power
created under clause 1 (Health and Safety at work: general duty of self-employed persons), which
had previously been covered in the previous memoranda dated the 1st July 2014 and the 27th October
2014.
Amendment to Clause 1: Health and Safety at work: general duty of self-employed persons
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by Statutory Instrument
Parliamentary procedure: Affirmative Resolution
7. Section 3(2) of the Health and Safety at Work etc. Act 1974 (“HSWA”) imposes a general duty on all
self-employed persons to conduct their undertaking in such a way to ensure, so far as reasonably
practicable, that they themselves and persons other than their employees who may be affected by it
are not exposed to risks to their health and safety. Clause 1 limits the scope of section 3(2) so that
only those self-employed who conduct an “undertaking of a prescribed description” will continue to
hold a duty under this provision. “Prescribed” has a specific meaning within the 1974 Act, defined in
section 53(1) as prescribed by regulations made by the Secretary of State.
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8. As set out in paragraphs 11 to 22 of the memorandum dated the 1st July 2014, this clause provides the
Secretary of State with a new regulation making power under HSWA, which affords the Secretary of
State a degree of flexibility because a number of different descriptions of undertaking could be given
in regulations. Paragraph 16 made it clear these descriptions could include a reference to the
economic activities that the undertaking engages in, work activities involving a specific hazard, work
activities conducted in a specific capacity, or a combination of these things.
9. A public consultation was conducted by the Health and Safety Executive in 2014, the overwhelming
tenor of which was that regulations which only prescribe self-employed persons who conduct
specified high-risk activities are not fit for purpose. One of the reasons for this was it would lead to
some self-employed persons who pose a risk to the health and safety of others falling exempt from
the law. The Government has given careful consideration to the consultation responses and an
amendment has been tabled at Lords Third Reading stage to address this issue.
10. The amendment sets out the ways in which undertakings may be described in the regulations.
Paragraph (a) covers descriptions based on the type of activities carried out by the undertaking or on
other features of the undertaking. (Examples of these kinds of descriptions would be those mentioned
in paragraph 16 of the memorandum dated the 1st July 2014 and summarised at paragraph 8 above.)
Paragraph (b) ensures that the regulations could include a general description covering any
undertaking the conduct of which may expose others to risk to their health or safety.
11. This amendment will therefore enable the Secretary of State to make regulations which will retain
section 3(2) HSWA duties on all self-employed persons who may expose others to risks to their
health and safety.
12. As set out in paragraphs 5 to 8 of the memorandum dated the 27th October 2014, regulations made
under this clause will continue to be subject to the affirmative resolution procedure.
b. The Short Term Use Amendments
Introduction
13. Clause 44 of the Bill already contains provisions to make regulations in connection with section 25
of the Greater London Council (General Powers) Act 1973 (as amended) (the ‘Act’) and the details
of this were set out in paragraphs 228 – 235 of the Delegated Powers Memorandum dated 1 July
2014.
14. The Government has tabled a new clause to be inserted after clause 43 which would insert two new
sections into the Greater London Council (General Powers) Act 1973:
i.
ii.
a new section 25A which creates an exception to section 25 permitting, in certain
circumstances, residential premises to be used as temporary sleeping accommodation for 90
nights within a calendar year (the ‘Exception’); and
a new section 25B which will allow a local planning authority or the Secretary of State to
make a direction to disapply this Exception if it considers it necessary to protect local
amenity.
15. Additionally as set out in paragraphs 228 – 235 of the memorandum of 1 July 2014, clause 44
provides the Secretary of State with a regulation-making power in connection with section 25 of the
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Greater London Council (General Powers) Act 1973 (as amended). The proposed new clause after
clause 43 would create an exception to section 25 permitting, in certain circumstances, residential
premises to be used as temporary sleeping accommodation for 90 nights within a calendar year (the
‘Exception’) and further provides that a local planning authority or the Secretary of State can make a
direction to disapply this Exception if it considers it necessary to protect local amenity. The proposed
new clause after clause 43 therefore necessitates an amendment to the regulation-making powers set
out in clause 44.
New clause after Clause 43: Short-term use of London accommodation: relaxation of restrictions
Power conferred on:
The Secretary of State
Power exercised by:
Regulations made by statutory instrument
Parliamentary procedure:
Negative Resolution
16. The new section 25B(7) contains a regulation-making power which will allow the Secretary of State
to make provision as to:
a. the procedure which must be followed in connection with the giving of a direction under
subsection 25B(1) or in connection with the revocation of such a direction under subsection
25B(4); and
b. the information which must be provided where the local planning authority seeks the consent
of the Secretary of State to the giving of a direction.
17. The regulations made by the Secretary of State under section 25B will necessarily contain a
significant amount of procedural detail. The Department considers it would not be desirable to
include all of this procedural detail on the face of the Bill and has therefore justified the delegation on
the basis that regulations are the most suitable medium for setting out matters of procedural detail.
18. The Department also anticipates that there may be a need to respond to stakeholder advice and
concerns when establishing an appropriate procedure and possibly make changes to the procedure
when it is operational. Greater flexibility can be achieved if amendments can be made by way of
secondary legislation, rather than seeking primary legislation each time a change is required.
19. Section 25B can operate without any regulations being made. It is not merely a skeleton provision; it
is not necessary to have regulations in order for the clause to be understood and applied. While the
regulations will be important to add detail to the process of making a direction (for example
providing details of the type of information which should support a proposed direction), nonetheless
a lower level of parliamentary scrutiny is appropriate on the basis that the content of the regulations
are not critical to the operation or understanding of the provision.
20. The regulation making power is limited in scope. The regulations relate only to the procedure to be
followed in connection with the giving of a direction and the information which should be provided
where the local planning authority seeks the consent of the Secretary of State to the giving of a
direction. Given the limited matters the regulations can cover the level of scrutiny offered by the
negative procedure is considered sufficient.
21. There is precedent in planning legislation for similar provisions to
procedure. The provision is broadly analogous to the procedure
development rights contained in articles 4, 5 and 6 of the Town and
Permitted Development) Order 1995 (1995/418) (the “1995 Order”).
be subject to the negative
for disapplying permitted
Country Planning (General
The primary power for the
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making of the 1995 Order is contained in sections 59, 60 and 61 of the Town and Country Planning
Act 1990.
22. The 1995 Order provides that either the Secretary of State of the local planning authority may give a
direction that planning permission granted by the order shall not apply to certain areas. Arguably the
1995 Order goes further than the legislation considered here, in that the 1995 Order itself confers the
power to make a direction (whereas the equivalent power is contained in the primary legislation in
section 25B). The 1995 Order is subject to the negative procedure and therefore it seems justifiable
that a similar but more limited power be subject to the same level of scrutiny.
Amendment to Clause 44: Short-term use of London accommodation: relaxation of restrictions
Power conferred on:
The Secretary of State
Power exercised by:
Regulations made by statutory instrument
Parliamentary procedure:
Affirmative Resolution
23. The amended provision will allow the Secretary of State to make regulations to provide that section
25(1) does not apply if conditions specified by the regulations are met. Any regulations made under
this power must also include provision corresponding to that contained in section 25B which allows
either the local planning authority or the Secretary of State to direct that the disapplication of section
25 does not apply to certain properties or areas.
24. The amendment to the regulation making power in clause 44 (1) as referred to above in paragraph 23,
is intended to ensure that other exceptions to section 25 may still be created. This was the intention
of the original regulation making power in clause 44 and therefore the justification for the delegation
and level of parliamentary scrutiny remains the same as given in the memorandum dated 1 July 2014.
c. The Legal Services Amendments
Background
25. The Legal Services Act 2007 (“the 2007 Act”) governs the regulation of legal services in England
and Wales. Under the 2007 Act, only a person who is authorised by an approved regulator or who is
exempt from the requirement to be authorised (see section 19 of, and Schedule 3 to, the 2007 Act)
may carry on a reserved legal activity (see section 12 of the 2007 Act). Approved regulators are
responsible for ensuring that the persons authorised by them act in a way that is consistent with the
regulatory objectives set out in the 2007 Act (see section 1 of the 2007 Act).
26. Part 2 of the 2007 Act established the Legal Services Board (“the LSB”) as the oversight regulator
with responsibility for approved regulators. The approved regulators and the reserved legal activities
in relation to which they are designated are set out in Part 1 of Schedule 4 and in designation orders
made under Schedule 4. Part 2 of Schedule 4 allows for bodies to apply to the LSB to be
recommended to the Lord Chancellor for designation as an approved regulator in relation to one or
more of the reserved legal activities. The Legal Services amendments relate to the Council for
Licensed Conveyancers (“CLC”). The CLC is an approved regulator for reserved instrument
activities, the administration of oaths and probate activities.
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27. Schedule 10 to the 2007 Act provides that an approved regulator may also be designated by the Lord
Chancellor as a licensing authority. Licensing authorities may authorise (license) bodies, known as
alternative business structures, which are partly or wholly owned or controlled by non-lawyers to
carry on reserved legal activities. Part 5 of the 2007 Act sets out arrangements under which licensing
authorities may regulate such bodies. The CLC is a licensing authority for reserved instrument
activities, the administration of oaths and probate activities.
28. The CLC is governed by provisions in the Administration of Justice Act 1985 (“the 1985 Act”), the
Courts and Legal Services Act 1990 (“the 1990 Act”) and the 2007 Act.
29. In summary, the Legal Services Amendments make the following changes:
(a) The first new clause after clause 84 (CLC practitioner services bodies) makes amendments to
section 32 of the 1985 Act. At present, section 32 only allows the CLC to recognise a body
known as a conveyancing services body (as defined in section 32A of the 1985 Act). In essence, a
conveyancing services body is a body that must have a licensed conveyancer as part of its
management or control. Once amended, the CLC’s powers in section 32 will relate to
conveyancing services bodies and also a new kind of body known as a CLC practitioner services
body. A CLC practitioner services body must not provide conveyancing services. The first new
clause after clause 84 adds a new section 32B to the 1985 Act to provide a definition of CLC
practitioner services bodies. The first new clause after clause 84 also makes amendments to
section 32 that relate to the powers of the CLC in relation to conveyancing services bodies.
(b) The second new clause after clause 84 (Licensed CLC practitioners) amends section 53 of the
1990 Act so that the CLC can give licences under section 53 to individuals to be known as
licensed CLC practitioners. At present, the CLC can only give licences to individuals known as
licensed conveyancers. Licensed CLC practitioners must not provide conveyancing services.
(c) The third new clause after clause 84 (CLC practitioner services: consequential amendments) and
the first new Schedule after Schedule 18 (CLC practitioner services: consequential
amendments) make amendments that are consequential on the amendments made by the first and
second new clauses after clause 84.
(d) The fourth new clause after clause 84 (The Council for Licensed Conveyancers: other
amendments) and the second new Schedule after Schedule 18 (the Council for Licensed
Conveyancers: other amendments) make a number of other amendments to the powers and
functions of the CLC.
(e) Clause 110 of the Bill (Commencement) is amended to confer on the Lord Chancellor the
powers to commence, and powers associated with commencement of, the Legal Services
Amendments covered by this supplementary memorandum.
First new clause after clause 84:
Rules of the CLC prescribing circumstances in which bodies may be recognised and Rules of the
CLC prescribing the CLC’s arrangements for authorising recognised bodies and conditions on
recognition
Power conferred on: the Council for Licensed Conveyancers
Power exercisable by: rules of the Council for Licensed Conveyancers
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Parliamentary procedure: no parliamentary procedure; rules must be approved by the Legal Services
Board under Part 3 of Schedule 4 to the 2007 Act
30. The proposed first new clause after clause 84 amends section 32 of the 1985 Act. Section 32
empowers the CLC to recognise bodies to carry on legal services. The amendments of section 32
alter the CLC’s powers to make rules about: (1) the management and control of conveyancing
services bodies (see section 32(1)(a) of the 1985 Act); (2) the circumstances in which bodies may be
recognised (see section 32(1)(b) of the 1985 Act); (3) the CLC’s arrangements for authorising
recognised bodies to carry on specific legal services (see section 32(1)(ba) of the 1985 Act); and (4)
the requirements which must at all times be satisfied by recognised bodies if they are to remain
recognised (see section 32(1)(c) of the 1985 Act). At present, section 32 only allows the CLC to
recognise a body known as a conveyancing services body as defined in section 32A of the 1985 Act
(in essence, a conveyancing services body is a body that must have a licensed conveyancer as part of
its management or control). Once amended, the CLC’s powers in section 32(1)(a) will relate to
conveyancing services bodies and also a new kind of body known as a CLC practitioner services
body.
31. Subsection (3)(a) of the proposed first new clause after clause 84 contains an amendment of the
powers of the CLC in section 32(1)(a) of the 1985 Act to provide that rules of the CLC may make
provision not only about the management and control of conveyancing services bodies but also about
the new kind of body known as CLC practitioner services bodies.
32. Subsection (3)(b) and (c) of the proposed first new clause after clause 84 contains an amendment of
the powers of the CLC in section 32(1)(b) of the 1985 Act to make rules prescribing the
circumstances in which conveyancing services bodies may be recognised by the CLC as being
suitable to undertake certain services. At present the services listed are conveyancing services and
other relevant legal services. The powers in the sub-paragraph are amended to add the administration
of oaths, the exercise of a right of audience, conduct of litigation and probate activities. These
services are added to the list because the CLC has the power to recognise bodies to carry on the
administration of oaths and probate activities at present (for the administration of oaths see Part 1 of
Schedule 4 to the 2007 Act and for probate activities see the amendment of Part 1 of Schedule 4 to
the 2007 Act by S.I. 2009/3233) and may be designated in the future for the activities of the exercise
of a right of audience and the conduct of litigation. Designation of the CLC in relation to the exercise
of a right of audience or the conduct of litigation would require a recommendation to the Lord
Chancellor from the LSB and an order under the 2007 Act.
33. Subsection (3)(d) of the proposed first new clause after clause 84 also adds a new sub-paragraph
(bza) to section 32(1) to allow the CLC to make rules prescribing the circumstances in which the
CLC may recognise CLC practitioner services bodies as suitable to undertake the administration of
oaths, the exercise of a right of audience, the conduct of litigation, probate activities and other
relevant legal services. This list does not include conveyancing services because CLC practitioner
services bodies will not be undertaking conveyancing services. As this power corresponds to the
existing power in section 32(1)(b) described above the Department considers that it is a matter that
should also be provided for in rules of the CLC.
34. Subsection (3)(e) of the proposed first new clause after clause 84 amends section 32(1)(ba) of the
1985 Act to expand the powers of the CLC to make rules prescribing the CLC’s arrangements for
authorising recognised bodies to carry on the activities listed in section 32(1)(ba). At present the
activities covered are reserved instrument activities and the administration of oaths. The amendments
will expand the listed activities to cover reserved instrument activities (but only if the body to be
recognised is a conveyancing services body), the administration of oaths, the exercise of a right of
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audience, the conduct of litigation, and probate activities. The expanded list covers all the reserved
legal activities for which the CLC is designated or may be designated (if there were a
recommendation from the LSB and an order under the 2007 Act). Subsection (3)(f) of the proposed
first new clause after clause 84 amends section 32(1)(c) to include reference to requirements that
relate to activities that are not reserved legal activities under the 2007 Act.
35. A new section 32(8A) is added by subsection (7) of the proposed first new clause after clause 84,
which provides that nothing in section 32 of the 1985 Act affects section 13 of the 2007 Act. The
CLC must be designated as an approved regulator for the reserved legal activities of the exercise of a
right of audience and the conduct of litigation before it may exercise its new powers in relation to
those activities.
36. A new section 32B is added to the 1985 Act by subsection (8) of the proposed first new clause after
clause 84, which provides the definition of CLC practitioner services bodies. This is the equivalent
to section 32A for conveyancing services bodies. Section 32B(5) makes it clear that a CLC
practitioner services body must not provide conveyancing services. It is for this reason that section
32(1)(b) and (bza) while similar in effect do not cover precisely the same services. Section
32(1)(bza) does not cover conveyancing services. Section 32B(6) includes an additional condition
relating to the authorised person by reference to whom the management or control condition is
satisfied for the CLC practitioner services body. That person must be an authorised person in respect
of at least one of the CLC practitioner services in respect of which the body is to be recognised. The
effect of section 32B(7) is that the CLC must be an approved regulator in relation to the listed
activities before that activity becomes a CLC practitioner service. This means that the CLC must be
designated in relation to the exercise of a right of audience or the conduct of litigation before it can
exercise its new powers in relation to those matters.
37. The proposed first new Schedule after Schedule 18 (CLC Practitioner Services: Consequential
Amendments) contains a number of amendments to the 1985 Act, the 1990 Act and the 2007 Act that
are consequential on the creation of CLC practitioner services bodies.
38. Section 32 of the 1985 Act provides a power for the CLC to make rules concerning recognised
bodies relating to the matters listed in section 32(3). For example, rules may be made on the manner
and form of applications, the payment of fees and the names that may be used by recognised bodies.
With the extension of section 32 to cover CLC practitioner services bodies by the proposed first new
clause after clause 84 these rule making powers will be capable of being exercised in relation to CLC
practitioner services bodies. It is the Department’s view that as these are matters covered at present in
rules relating to conveyancing services bodies they are also matters that ought to be covered in rules
relating to CLC practitioner services bodies.
39. Section 32(3A) of the 1985 Act provides that rules made by the CLC may provide for the CLC to
grant a body recognition under section 32 subject to one or more conditions in circumstances
prescribed under section 32(3B). Section 32(3C) gives examples of conditions that may be imposed
under section 32(3A) and (3B) and this subsection is amended by amendment [1] subsection (5) to
cover CLC practitioner services bodies so that conditions may be placed on the kinds of CLC
practitioner services that may be provided by such a body. It is the Department’s view that as this is a
matter covered at present in rules relating to conveyancing services bodies it is also a matter that
ought to be covered in rules relating to CLC practitioner services bodies.
40. The matters described above are matters that have been covered by rules in the past and it is
appropriate for that to continue because the CLC is the expert regulator with detailed knowledge of
the profession it regulates. The role of the CLC in making these rules must be viewed in the context
of its role as an approved regulator under the 2007 Act. The CLC is statutorily entrusted with
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regulating those to whom it issues licences. It has, therefore, been judged as a suitable and
appropriate body to perform that role.
41. As an approved regulator the CLC is obliged when discharging its regulatory functions (which would
include making rules) to act in a way which is compatible with the regulatory objectives (section
28(1) of the 2007 Act). The regulatory objectives are the objectives of protecting and promoting the
public interest; supporting the constitutional principle of the rule of law; improving access to justice;
protecting and promoting the interests of consumers; promoting competition in the provision of legal
services; encouraging an independent, strong, diverse and effective legal profession; increasing
public understanding of the citizen’s legal rights and duties; and promoting and maintaining
adherence to the professional principles.
42. The professional principles (see section 1(3) of the 2007 Act) are:

that authorised persons (i.e. persons given licences by the CLC) should: act with
independence and integrity; maintain proper standards of work; and act in the best
interests of their clients;

that those authorised persons who exercise a right of audience or conduct litigation
should comply with their duty to the court to act with independence in the interests
of justice;

that the affairs of clients should be kept confidential.
43. Under section 28(2) of the 2007 Act the CLC, in common with all approved regulators, must have
regard to the principles under which regulatory activities should be transparent, accountable,
proportionate, consistent and targeted only at cases in which action is needed. These principles
should and currently are met by the rules made by the CLC.
44. The 2007 Act deliberately places regulation at arms length from central government to help ensure,
amongst other things, independence. It would not, therefore, be appropriate for a Minister to make
the rules. The 2007 Act creates the LSB as the oversight regulator but it places frontline regulation in
the hands of individual approved regulators. It would not, therefore, be appropriate for the LSB to
make the rules. Giving the power to make rules to the CLC is consistent with the position of other
frontline regulators such as the Solicitors Regulation Authority (the regulatory arm of the Law
Society) and the Bar Standards Board (the regulatory arm of the Bar Council).
45. The LSB must approve the CLC’s rules before they can come into force. The Department regards
this to be an appropriate level of scrutiny. The CLC must apply to the LSB for approval in
accordance with Part 3 of Schedule 4 to the 2007 Act. The LSB makes a robust and detailed
assessment of all applications. In accordance with paragraph 25(3) of Part 3 of Schedule 4 to the
2007 Act, the LSB may refuse an application for approval of regulatory arrangements only if it is
satisfied that one of the matters listed in that sub-paragraph will arise. Under paragraph 25(3)(a) the
LSB must consider the application against the regulatory objectives and the rules must not be
prejudicial to those objectives. Under paragraph 25(3)(b) the rules must be compatible with any
enactment. Further under paragraph 25(3)(b) the making of the rules must not result in the
designation requirements not being satisfied in relation to the CLC as an approved regulator. The
designation requirements are that the CLC has appropriate internal governance arrangements and that
the CLC is competent and has sufficient resources to perform the role of an approved regulator (see
paragraph 25(4) of Part 3 of Schedule 4 to the 2007 Act). Under paragraph 25(3)(c) the rules must
not be contrary to the public interest. Under paragraph 25(3)(d) and (e) the rules must not allow the
CLC to act beyond its designation as either an approved regulator or a licensing authority as the case
may be. Under paragraph 25(3)(f) the rules must be made in accordance with the CLC’s own
procedures.
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46. Under Part 3 of Schedule 4 to the 2007 Act the LSB may approve the rules or give the CLC notice
that it is considering not giving its approval (“a warning notice”). If a warning notice is given the
LSB may take advice on the application for approval and the approved regulator (i.e. the CLC) may
make written or oral representations.
47. The CLC consults with the profession and other stakeholders on its rules. At a minimum
consultations are sent to all licensed conveyancers and bodies recognised by the CLC and any
relevant representative bodies. In the case of the rule changes made in 2011, these were discussed
directly with the profession when the CLC held seminars in the autumn of 2010 in Cambridge,
Cardiff and Leeds. The CLC also consulted on that occasion with the Office of Fair Trading, the
Legal Services Consultative Panel and the Lord Chief Justice, the Law Society, the Bar Council and
the Institute of Legal Executives. The persons with whom the CLC may consult on rule changes may
depend on the subject matter of the rule change; for example the CLC engaged directly with the
Financial Services Authority, as it then was, in relation to the amendment of rules relating to
insurance intermediary services (in respect of which the CLC is a designated professional body
regulated by the FSA, now the Financial Conduct Authority).
48. All of the CLC’s rules must be approved by a committee of the Council and the Council. Under
paragraph 2 of Schedule 3 to the 1985 Act the Council consists of not more than ten persons who are
licensed conveyancers or other persons practising as authorised persons in the course of a business
which is carried on by a recognised body and not more than eleven persons who are lay persons.
49. Through its rules the CLC regulates its licence holders by ensuring they qualify through better
practice skills and knowledge. The CLC aims to ensure licence holders keep those skills up to date
and meet regulatory standards throughout their professional lives. It is the intention of the CLC
through its regulatory rules to help ensure the public can be confident in the professionalism and
competence of licence holders and be assured they are buying well regulated services. In line with
the LSB general guidance on the best approach to regulation the CLC’s current rules are comprised
of flexible higher-level principles which are focussed on outcomes.
50. The CLC rules are contained in the CLC’s Handbook, which can be found here:
http://www.conveyancer.org.uk/Handbook.aspx. The CLC will amend the CLC Handbook to take
account of any amendments made by the Legal Services Amendments. The CLC is committed to
carrying out a review of all its regulatory arrangements in 2016. This will include in particular a
review of its financial protection arrangements and its Account Code and Guidance. All amendments
that are made to account for the possibility of the CLC licensing CLC practitioner services bodies
will be made by the CLC with the intention of ensuring equivalence in the standard of regulation
between those bodies and conveyancing services bodies.
51. The Department acknowledges that the rules to be made by the CLC will be significant in developing
the scheme to be applied to CLC practitioner services bodies. The Department considers that there is
a sufficient level of detail as to what is to be included in that scheme for it to be appropriate for the
detail to be covered in rules. The provisions on making rules provide detailed examples of the
matters to be covered. The Department has considered whether a greater degree of parliamentary
oversight might be appropriate. The Department has concluded that it would not be appropriate
because it would be inconsistent with the current approach of the 1985 Act; an approach that the
Department regards as effective and in step with the general approach to legal services regulation.
Parliament has established arms length, independent regulation of legal services through the 2007
Act and the Department considers it is appropriate to continue with that approach.
52. It is the overall assessment of the Department that making these arrangements through rules with the
approval of the LSB is appropriate and consistent with the overall framework of the regulation of
legal services through the 2007 Act.
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Subsection (4) of first new clause after clause 84; paragraph 13(6) of first new Schedule after
Schedule 18; paragraph 4 of second new Schedule after Schedule 18:
Rules of the CLC prescribing the information on the registers of recognised bodies, licensed
conveyancers and licensed CLC practitioners
Power conferred on: the Council for Licensed Conveyancers
Power exercisable by: rules of the Council for Licensed Conveyancers
Parliamentary procedure: no parliamentary procedure; rules must be approved by the Legal Services
Board under Part 3 of Schedule 4 to the 2007 Act
53. Rules made by the CLC may make provision for the keeping by the CLC of a register containing the
names and principal places of business of all the bodies which are for the time being recognised
under section 32 of the 1985 Act and such other information relating to those bodies as may be
specified in the rules. This power is amended by subsection (4) of the proposed first new clause after
clause 84 to provide that the rules may provide that information about disciplinary measures taken be
included on the register. Section 19 of the 1985 Act contains a power for the CLC to keep a register
of licensed conveyancers. A new subsection is added to section 19 by paragraph 4 of the proposed
second new Schedule after Schedule 18 to enable the CLC to make rules specifying the further
information, including information about disciplinary measures taken, to be recorded in the register
in relation to a licensed conveyancer. A new paragraph 6A is added to Schedule 8 to the 1990 Act
(see paragraph 13(6) of the proposed first new Schedule after Schedule 18) and sub-paragraph (2)
makes corresponding provision for licensed CLC practitioners.
54. It is already provided in section 32 of the 1985 Act that rules make provision about the register of
recognised bodies. The Department considers, therefore, that it is appropriate for this additional
information to be covered in rules. The amendment to section 19 of the 1985 Act and the new
paragraph 6A(2) of Schedule 8 to the 1990 Act will create new rule making powers but the
Department considers this is appropriate for consistency with the powers in section 32 of the 1985
Act. It is also consistent with the Department’s view that the CLC is best placed to decide precisely
what should be included on its registers. The LSB is encouraging approved regulators (with the
support of the Legal Services Consumer Panel) to increase the amount of information on their
registers in the interests of transparency and consumer protection as well as the regulatory objectives
under section 1 of the 2007 Act. The Department refers the Committee to the explanation above in
paragraphs 40 to 52 of why it is appropriate for the CLC to make the rules and the process for
making them.
Second new clause after clause 84 and first new Schedule after Schedule 18:
Rules of the CLC concerning licensed CLC practitioners
Power conferred on: the Council for Licensed Conveyancers
Power exercisable by: rules of the Council for Licensed Conveyancers
Parliamentary procedure: no parliamentary procedure; rules must be approved by the Legal Services
Board under Part 3 of Schedule 4 to the 2007 Act
11
55. Section 53 of the 1990 Act is amended by the proposed second new clause after clause 84 to allow
the CLC to issue advocacy, probate and litigation licences to a new practitioner to be known as a
licensed CLC practitioner. The proposed first new Schedule after Schedule 18 (CLC Practitioner
Services: Consequential Amendments) contains a number of amendments to the 1985 Act, the 1990
Act and the 2007 Act that are consequential on the creation of licensed CLC practitioners. Section
53(9) of the 1990 Act applies Part 2 of the 1985 Act with necessary modifications to those who hold
advocacy, probate and litigation licences and by virtue of the amendments to section 53 holders of
such licences will now include licensed CLC practitioners. This means that all the powers of the CLC
to make rules in Part 2 of the 1985 Act can be used to make rules concerning licensed CLC
practitioners (subject to specific provision in Schedule 8 to the 1990 Act). The rule making powers in
Part 2 of the 1985 Act are as follows:

Section 13: rules on education and training but paragraph 2 of Schedule 8 to the 1990 Act
makes provision on these matters in connection with licences under section 53 (see paragraph
41 below).

Section 14: rules on applications for licences but paragraph 3 of Schedule 8 to the 1990 Act
makes specific provision on this matter in connection with licences under section 53 (see
paragraph 41 below).

Section 16A(2): additional fee payable to be prescribed in rules.

Section 17A: rules on variation of conditions in a licence.

Section 20(1): rules as to professional practice, conduct and discipline.

Section 21: the CLC must make rules for indemnifying licensed conveyancers and former
licensed conveyancers against losses arising from claims in respect of any description of civil
liability incurred by them, their employees and associates. The CLC must also make rules
under this section for grants or other payments to be made to relieve or mitigate losses as a
result of negligence, fraud, other dishonesty or failure to account for money by licensed
conveyancers. This power includes requiring a fund to be established and requiring
practitioners to take out insurance. All of these powers will now include licensed CLC
practitioners.

Section 22: rules on keeping accounts and client accounts.

Section 23: rules on interest on client money.

Section 24(4): rules on disciplinary matters and proceedings by the Investigating Committee.

Sections 24A(4) and 26(2)(e): rules to set the maximum amount of a disciplinary penalty.

Section 25: rules on the Discipline and Appeals Committee.

Section 33A: rules on arrangements for authorising practitioners to carry on the administration
of oaths.

Paragraph 1 of Schedule 4: rules must be made about the procedure and practice to be followed
in relation to proceedings before the Discipline and Appeals Committee.

Paragraph 6B of Schedule 5: rules governing the treatment of sums vested in the CLC under
paragraphs 6 and 6A of Schedule 5.

Paragraphs 3A(4), 4(2) and (2B) of Schedule 6: rules setting the maximum amount of a
financial penalty for a recognised body. This power will now include CLC practitioner services
bodies.
12

Paragraph 8(3) of Schedule 6: rules as respects appeals against an application for recognition
that is deemed to be refused. This power will now include CLC practitioner services bodies.
56. Section 33A of the 1985 Act is amended by paragraph 5 of the proposed first new Schedule after
Schedule 18 to include licensed CLC practitioners. Section 33A enables the CLC to make rules
prescribing its arrangements for authorising licensed conveyancers to carry on the administration of
oaths. This is amended to extend the rule making power to cover licensed CLC practitioners.
57. The following powers of the CLC to make rules under Schedule 8 to the 1990 Act will now include
licensed CLC practitioners by virtue of the proposed second new clause after clause 84 and
paragraph 13 of the proposed first new Schedule after Schedule 18:

Paragraph 2 of Schedule 8: power to make qualification and conduct rules. Under this power
the CLC may, in particular, do anything which it has power to do in making rules under section
13 of the 1985 Act (training rules).

Paragraph 3 of Schedule 8: rules on applications for a licence under section 53 of the 1990 Act
including any fees. Under paragraph 3(3) rules under paragraph 3 and section 14 of the 1985
Act may make provision with respect to applications for composite licences.

Paragraph 12 of Schedule 8: in paragraph 12(2) there is a power to make rules providing for
functions conferred by Part 2 of the 1985 Act on a committee established under Part 2 to be
discharged by a committee established under paragraph 12. There are also other powers to
make rules on committees in paragraph 12(4) and (9).
58. At present these rule making powers extend to licensed conveyancers and it is the view of the
Department that there should be parity in the regulation of licensed CLC practitioners compared with
licensed conveyancers. These are matters that are covered in rules at present and the Department does
not consider it to be appropriate to treat licensed CLC practitioners differently. The Department
refers the Committee to the explanation in paragraphs 40 to 52 above on why the CLC is best placed
to make these rules and how they are made. All amendments that are made to the CLC’s rules to
account for the possibility of the CLC issuing licences to licensed CLC practitioners will be made by
the CLC with the intention of ensuring equivalence in the standard of regulation between those
persons and licensed conveyancers.
Second new clause after clause 84:
Modification of Part 2 of the 1985 Act and transitional and consequential provision
Power conferred on: the Lord Chancellor
Power exercisable by: order made by Statutory Instrument
Parliamentary procedure: negative resolution
59. Under section 53(8) of the 1990 Act the Lord Chancellor may by order make such amendments of, or
modifications to, the provisions of Part 2 of the 1985 Act or transitional or consequential provision as
the Lord Chancellor considers necessary or expedient in connection with the provision made by
section 53 of, and Schedule 8 to, the 1990 Act. By virtue of the amendments to section 53 being
made by the proposed second new clause after clause 84 this power could be exercised in relation to
licensed CLC practitioners. By virtue of section 120(6) of the 1990 Act the power is subject to the
negative resolution procedure. The power has been used twice before. First, to specify the date from
which certain disciplinary powers may be exercised by the CLC 1. Second, to amend section 21 of the
1
Council for Licensed Conveyancers (Disciplinary Powers) Order 2001 S.I. 2001/48.
13
1985 Act to allow the CLC to make rules establishing a compensation fund in relation to the provision of
probate services2.
60. This is an existing order making power, which will be extended to cover licensed CLC practitioners
by virtue of the other amendments to section 53 of the 1990 Act. It is the Department’s policy to treat
licensed CLC practitioners the same as licensed conveyancers and this would include the powers in
which they are included. Parity in this order making power should result in parity of regulation.
61. This power is subject to the negative resolution procedure at present and the Department sees no
need to depart from that in relation to licensed CLC practitioners. The Department acknowledges that
this power can be used to amend primary legislation but the Department considers that the negative
resolution procedure is appropriate because the power must only be exercised in accordance with the
narrowly drawn test in section 53(8) that the Lord Chancellor consider the amendment is: “necessary
or expedient in connection with the provision made by this section [section 53 of the 1990 Act] and
Schedule 8”. Further, Parliament has previously agreed that this represents a suitable degree of
oversight of such detailed matters.
Amendments to clause 110 (Commencement):
Power conferred on: the Lord Chancellor
Power exercisable by: Order made by Statutory Instrument
Parliamentary procedure: no parliamentary procedure
62. Proposed amendments to clause 110 of the Bill (Commencement) to add a new subsection (5A) to
clause 110 to confer on the Lord Chancellor the power to commence the proposed first, second, third
and fourth new clauses after clause 84 and the proposed first and second new Schedules after
Schedule 18, which relate to the CLC. This is because the Lord Chancellor rather than the Secretary
of State is the Minister responsible for legal services policy. The amendments include an amendment
to add a new subsection (8A) to clause 110 to confer on the Lord Chancellor the power to make by
order such transitional, transitory or saving provision as the Lord Chancellor considers appropriate in
connection with the coming into force of the proposed first, second, third and fourth new clauses
after clause 84 and the proposed first and second new Schedules after Schedule 18, which relate to
the CLC. The amendments include an amendment to subsection (9) of clause 110, which allows an
order to make different provision for different purposes, to include the new subsection (8A). The
Department considers that these amendments are appropriate because the amendments described in
this paragraph make provision for the Lord Chancellor that corresponds with the powers of the
Secretary of State already in the commencement clause.
Paragraph 2 of second new Schedule after Schedule 18:
Rules of the CLC prescribing the period for the purposes of section 15(3)(b) of the 1985 Act
Power conferred on: the Council for Licensed Conveyancers
Power exercisable by: rules of the Council for Licensed Conveyancers
Parliamentary procedure: no parliamentary procedure; rules must be approved by the Legal Services
Board under Part 3 of Schedule 4 to the 2007 Act
2
The Courts and Legal Services Act 1990 (Modification of Power to make Rules about Licensed Conveyancers) Order 2008 S.I.
2008/537.
14
63. Section 15 of the 1985 Act is amended by the proposed second new Schedule after Schedule 18 to
replace the fixed period of 42 days in section 15(3)(b) with a power for the CLC to make rules
prescribing the period. The period in section 15(3)(b) is the period after which an application for a
licence is deemed to be refused if there has been no decision from the CLC.
64. It is the Department’s view that it is unnecessarily prescriptive for time limits of this nature to be set
in statute. Further it is the Department’s view that it is appropriate for this matter to be provided for
in rules to provide parity with the CLC’s powers as a licensing authority under Part 5 of the 2007 Act
(alternative business structures). Section 83 of, and Schedule 11 to, the 2007 Act make wide-ranging
provision for the CLC (and other licensing authorities) to make rules relating to the licensing and
regulation of licensed bodies. The Department considers, therefore, that this amendment will give the
CLC an appropriate amount of flexibility and control over its own regulatory processes as an
approved regulator. The Department refers the Committee to the explanation in paragraphs 40 to 52
as to why it is appropriate for the CLC to make these rules and the process for making them.
Paragraph 5 of second new Schedule after Schedule 18:
Rules of the CLC on association between licensed conveyancers
Power conferred on: the Council for Licensed Conveyancers
Power exercisable by: rules of the Council for Licensed Conveyancers
Parliamentary procedure: no parliamentary procedure; rules must be approved by the Legal Services
Board under Part 3 of Schedule 4 to the 2007 Act
65. The rule making power of the CLC in section 20(2) is repealed by paragraph 5 of the proposed
second new Schedule after Schedule 18. This is a power to make rules concerning the association of
licensed conveyancers with other persons in connection with the provision of conveyancing services
to members of the public. This rule making power is repealed because it is no longer needed.
Paragraph 9 of second new Schedule after Schedule 18:
Scheme on the appointment of persons to the Council
Power conferred on: the Council for Licensed Conveyancers
Power exercisable by: scheme of the Council for Licensed Conveyancers
Parliamentary procedure: no parliamentary procedure; scheme must be approved by the Legal Services
Board under paragraph 4(3) of Schedule 3 to the 1985 Act
66. Under paragraph 4 of Schedule 3 to the 1985 Act the CLC must prepare a scheme making various
provisions about appointments to the Council for Licensed Conveyancers3. Paragraph 4(2) provides
that the scheme must provide that the lay persons on the Council must exceed by one the other
members of the Council. This is amended by paragraph 9 of the proposed second new Schedule after
Schedule 18 to provide that although there must still be a lay majority it does not need to be by
exactly one. Under paragraph 4(3) of Schedule 3 to the 1985 Act a scheme may only come into force
once it has been approved by the LSB. Under paragraph 4(4) of that Schedule the LSB may either
approve a scheme as submitted to it or approve it subject to such modifications as it thinks fit. If the
LSB proposes to make modifications to a scheme as submitted it must notify the CLC of the
3
The current scheme can be found here: http://www.clc-uk.org/CLCSite/media/PDFs/CLC_Appointment_Regulations_2014.pdf
15
proposed modifications and consider any observations of the CLC on them. Under paragraph 4(5) of
Schedule 3 a scheme under paragraph 4 may be varied or revoked by a subsequent scheme.
67. A scheme gives the CLC an appropriate amount of flexibility and control over its own constitution
and this is an amendment to the powers to make the scheme. The requirement for exactly one extra
lay person is too restrictive and makes the management of the composition of the Council very
difficult. There is a rotation in the appointment and departure of members of the Council and this is
difficult to combine with exactly one extra lay person. It is sometimes the case that the CLC has
possible lay members who are ready to join the Council but it is not possible for them to do so
because the lay persons would then be greater than the non-lay persons by more than one. This often
leads to difficulties in securing suitable lay persons to be members of the Council. The Department,
therefore, considers this to be an appropriate amendment of the scheme making powers.
Cabinet Office
AND
Health and Safety Executive
AND
Department of Communities and Local Government
AND
Ministry of Justice
25th February 2015
16